Updated January 16, 2025
LABOR THAT WORKS LABOR SERVICES AGREEMENT
This Labor Services Agreement (this “Agreement”) is effective as of the Effective Date set forth in the first applicable Order Form (the “Effective Date”), and is by and between Labor That Works, LLC (“Labor That Works”) and the executing party set forth in the applicable Order Form (“Customer”). BY ACCESSING OR USING THE PLATFORM, CLICKING TO ACCEPT THIS AGREEMENT, OR EXECUTING AN ORDER FORM, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ACCESSING AND USING THE SERVICES ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS. IN THAT CASE, “CUSTOMER” WILL REFER TO THAT ENTITY Labor That Works and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
RECITALS
Labor That Works is an employer of Workers, and Labor That Works operates the Platform which permits its customers to engage Workers for Jobs; and
Customer desires to access and use the Platform, and Labor That Works is willing to provide such access, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
DEFINITIONS.
“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Platform, including, without limitation, any usage data or trends with respect to the Platform.
“Authorized User” means an employee or contractor whom Customer has authorized to Use the Platform on behalf of Customer.
“Labor That Works IP” means the Platform, the underlying software provided in conjunction with the Platform, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Platform, Documentation, Aggregate Data, Ratings Information, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
“Conversion Fee” means the Conversion Fee amount set forth in an applicable Order Form.
“Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Platform or to Labor That Works in connection with Customer’s Use of the Platform, but excluding, for clarity, Ratings Information, Aggregate Data, and any other information, data, data models, content or materials owned or controlled by Labor That Works and made available through or in connection with the Platform.
“Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Labor That Works to Customer (including any revised versions thereof) relating to the Platform, which may be updated from time to time upon notice to Customer.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Job” means a job shift opening posted by or on behalf of Customer through the Platform (e.g., communicated by Customer to Labor That Works and posted by Labor That Works to the Platform on behalf of Customer) as an offer for work to be performed by a Worker.
“Minimum Conversion Hours” means the number of hours performed by a Worker for an applicable Job, as set forth in the applicable Order Form.
“Order Form” means (i) a mutually executed order form or other mutually agreed upon ordering document which references this Agreement and sets forth the applicable Platform to be provided by Labor That Works; or if no mutually executed ordering document exists, then (ii) the relevant terms, including, as applicable, the Fees, payment terms, Platform description, and Vetting Process, as presented to Customer via the Platform, in conjunction with Customer’s acceptance (e.g., online click-acceptance) of this Agreement.
“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
“Platform” means the technology platform which connects workers with independent third-party businesses in order to fulfill open job shifts offered by such third-party businesses through the platform. For clarity, the Platform is designed to enable Customer to engage Workers to perform Jobs.
“Ratings Information” means any and all ratings, review, and feedback information on or of any user of the Platform, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer or any other user through the Platform or to Labor That Works in connection with this Agreement. Ratings Information is Customer Materials for purposes of Sections 7(c) and 10(d) only.
“Use” means to use and/or access the Platform in accordance with this Agreement and the Documentation for its intended purposes.
“Vetting Process” means (i) with regard to background checks, Labor That Works’ then-current standard reasonable background check process conducted on applicable Workers, (ii) with regard to interviews, Labor That Works’ then-current standard interviews conducted on applicable Workers, if set forth in an applicable Order Form, and (iii) any other investigation, examination, or assessment procedures carried out by or on behalf of Labor That Works, if any, as set forth in an applicable Order Form.
“Worker” means an individual, non-Customer user of the Platform who is an employee of Labor That Works and who connects or engages with Customer through the Platform to perform a Job.
“Worker Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of a Worker through the Platform or to Labor That Works or Customer in connection with a Worker’s use of the Platform or performance of a Job, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Labor That Works and made available through or in connection with the Platform.
PLATFORM; ACCESS AND USE.
Platform. Subject to the terms and conditions of this Agreement, Labor That Works hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 17(f)) right to Use the Platform during the Term, solely for Customer’s business purposes.
Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Platform in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Platform or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Platform, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Platform to any other Person, or otherwise allow any Person to use the Platform for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Platform, or any data or content contained therein or transmitted thereby; (vii) access or search the Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Platform features provided by Labor That Works for use expressly for such purposes; or (viii) use the Platform, Documentation or any other Labor That Works Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Platform.
Authorized Users. Customer will not allow any Person other than Authorized Users to Use the Platform. Customer may permit Authorized Users to Use the Platform, provided that Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Platform. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Platform in accordance with customary security protocols, and will promptly notify Labor That Works if Customer knows or reasonably suspects that any user name and/or password has been compromised.
Third-Party Services. Certain features and functionalities within the Platform may allow Customer and its Authorized Users to interface or interact with, access and/or use third-party services, products, technology and content (collectively, “Third-Party Services”) through the Platform. Labor That Works does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto, even if recommended by Labor That Works or provided through the Platform. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Platform.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, Labor That Works reserves and, as between the Parties will solely own, the Labor That Works IP and all rights, title and interest in and to the Labor That Works IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
Feedback. From time to time Customer or its employees, contractors, or representatives may provide Labor That Works with suggestions, comments, feedback or the like with regard to the Platform (collectively, “Feedback”). Customer hereby grants Labor That Works a perpetual, irrevocable, royalty-free and fully-paid up license (with the right to sublicense) to use and exploit all Feedback in connection with Labor That Works’ business purposes, including, without limitation, the testing, development, maintenance and improvement of the Platform.
FEES, WAGES, AND PAYMENT.
Fees. Customer will pay Labor That Works the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”), without offset or deduction, and which may be reflected, in whole or in part, as a portion or percentage mark-up of Wages, which shall constitute the Fees (or a portion thereof), separate from Wages themselves, to be paid to Labor That Works. Labor That Works reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon sixty (60) days’ prior notice to Customer (which may be sent by email). Customer will be deemed to have accepted such changes in or new Fees and/or charges unless Customer provides written notice to Labor That Works declining such changes in or new Fees and/or charges, within the foregoing sixty (60) day notice period, whereby this Agreement will automatically terminate at the end of such sixty (60) day period pursuant to Section 13(d).
Payments. Payments due to Labor That Works under this Agreement must be made in U.S. dollars by ACH payment, check, wire transfer of immediately available funds to an account designated by Labor That Works or such other payment method mutually agreed by the Parties. Except as otherwise stated in an applicable Order Form, Labor That Works will use weekly invoices to Customer during the Term, and Customer will pay all amounts set forth on such invoice upon receipt thereof. All payments are non-refundable and Customer will not have the right to set off, discount or otherwise reduce or refuse to pay any amounts due under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of one and one-half (1.5%) per month or, if lower, the highest rate permitted by applicable law and Labor That Works may immediately suspend the Platform until all payments are made in full, or otherwise terminate this Agreement in entirety with written notice to Customer. Customer will reimburse Labor That Works for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. Timely payment of all amounts due is a condition precedent to Labor That Works’ obligations and Customer’s rights hereunder.
Automatic Payments. The Platform may offer the ability for Customer to be charged applicable Fees and other charges automatically on a recurring basis monthly (“Automatic Payments”). BY PROVIDING CUSTOMER’S PAYMENT INFORMATION, CUSTOMER AUTHORIZES LABOR THAT WORKS TO INITIATE RECURRING NON-REFUNDABLE AUTOMATIC PAYMENTS AS SET FORTH BELOW. By using the Automatic Payments feature on the Platform, Labor That Works (or Labor That Works’ third-party payment processor) will automatically charge Customer monthly (e.g., on the due date of the applicable payment), using the payment information Customer has provided until Customer cancels such Automatic Payments feature. Customer hereby acknowledge and agrees that the Platform may offer this Automatic Payments feature and Customer accepts responsibility for all such Automatic Payments and payment obligations prior to cancellation of such Automatic Payments feature. Such Automatic Payments will continue until cancelled by Customer or Labor That Works, or termination or expiration of this Agreement.
Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Labor That Works hereunder, other than any taxes imposed on Labor That Works’ income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Labor That Works hereunder, Customer will pay an additional amount, so that Labor That Works receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
Worker Wages. Labor That Works is solely responsible for setting all wages owed to Workers for each Job through the Platform and for the payment of all applicable wages owed to each Worker in connection with each Job, whether through the Platform or as otherwise agreed (“Wages”).
RELATIONSHIP STATUS.
Employment Status. Labor That Works is the employer of record of the Workers. Labor That Works will be responsible for the compensation, benefits, employment taxes, unemployment insurance, workers’ compensation, paid leave and disability applicable to any Worker, as required by applicable law.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture, fiduciary, or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
INTERVIEWS AND BACKGROUND CHECKS.
Vetting Process. Labor That Works will use reasonable efforts to carry out its Vetting Process on applicable Workers. Labor That Works will use its then-current processes and procedures in carrying out its Vetting Process, which may be conducted on or through its Platform, and may involve the use of Third-Party Services.
CONFIDENTIAL INFORMATION.
Confidential Information. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Platform and the Documentation will be deemed Confidential Information of Labor That Works. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
Obligations. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Labor That Works may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
Confidentiality Term Length. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes the Platform or Documentation, such non-disclosure obligations will continue indefinitely, and with respect to any a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Agreement Terms. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
CUSTOMER MATERIALS AND DATA.
Ownership. Labor That Works acknowledges that, as between Customer and Labor That Works and except as set forth in Section 7(b), Customer owns and retains all right, title and interest in and to all Customer Materials.
License to Customer Materials. Customer hereby grants Labor That Works a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform, share with Traba, Inc., and modify the Customer Materials, including to host, operate, improve and provide the Platform and Labor That Works’ other related products, services and technologies to Customer, and for Labor That Works’ general business, product, and service analytics and improvement purposes. Customer agrees that Labor That Works may also process personally identifiable information as permitted by its then-current privacy policy.
Representations and Warranties Regarding Customer Materials. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, consents, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement, and (ii) Labor That Works’ use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
Worker Materials and Restrictions. Customer acknowledges and agrees that, as between the Parties, each Worker owns its applicable Worker Materials, and Labor That Works may freely use and exploit such Worker Materials pursuant to Labor That Works’ then-current privacy policy). Customer may receive Worker Materials in connection with this Agreement, and Customer represents and warrants that it will only use such Worker Materials solely as necessary to allow each applicable Worker to perform its Job(s) hereunder and for Customer to perform its obligations under this Agreement, and for no other purposes.
SOLICITATION. Labor That Works has invested and continues to invest great effort and resources in recruiting, selecting, and retaining Workers, and therefore Customer agrees that it (i) may solicit for hire, and/or hire, a Worker; provided that if Customer begins to, directly or indirectly, solicit for hire, or if Customer hires, any Worker who has not performed, in aggregate, at least the Minimum Conversion Hours for applicable Job(s) under this Agreement, then Customer will pay the Conversion Fee to Labor That Works within fourteen (14) days of hiring such Worker. Each party acknowledges that the restrictions in this Section 8 are: (a) material terms of this Agreement, (b) fair and reasonable, and (c) reasonably required for the protection of its business interests, including, without limitation, its Confidential Information. If any such restriction is held by a court of competent jurisdiction to be invalid or unenforceable, then that restriction will be deemed enforceable to the extent that the court will enforce it. Breach of this Section 8 shall be deemed a non-curable material breach, and, notwithstanding anything to the contrary hereunder, Labor That Works may terminate this Agreement immediately upon notice to Customer in the event Customer breaches this Section 8.
REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
INDEMNIFICATION.
Labor That Works Indemnification. Subject to Section 10(b), Labor That Works will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Platform infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Labor That Works (including reasonable attorneys’ fees) resulting from such Claim.
Exclusions. Labor That Works’ obligations under Section 10(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Platform that have been provided by Labor That Works; (iv) modifications to the Platform by anyone other than Labor That Works; (v) combinations of the Platform with software, data or materials not provided by Labor That Works; or (vi) Service Provider’s continued use of a version of the Platform which has been superseded by a non-infringing version subsequently released by Labor That Works.
IP Remedies. If Labor That Works reasonably believes the Platform (or any component thereof) could infringe any third party’s Intellectual Property Rights, Labor That Works may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Platform, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If Labor That Works determines that neither alternative is commercially practicable, Labor That Works may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. The rights and remedies set forth in this Section 10 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Platform.
Customer Indemnification. Subject to Section 10(e), Customer will defend Labor That Works against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; (iii) Use of the Platform by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(b); (iv) any Job, including any bodily injury, death, or damage to real or tangible personal property, each to the extent not covered by Labor That Works’ then-current insurance coverage as set forth in the Order Form; or (vi) any other allegations by a Worker which are attributable, in whole or in part, to Customer, to the extent not covered by Labor That Works’ then-current insurance coverage as set forth in the Order Form; and in each case, will indemnify and hold harmless Labor That Works against any damages and costs awarded against Labor That Works or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM AND OTHER LABOR THAT WORKS IP ARE PROVIDED ON AN “AS IS” BASIS, AND LABOR THAT WORKS MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE LABOR THAT WORKS IP, THE PLATFORM OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER, OR ANY SERVICES PROVIDED BY ANY WORKER, INCLUDING IN CONNECTION WITH ANY JOB. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LABOR THAT WORKS HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, LABOR THAT WORKS HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE PLATFORM WILL BE ERROR-FREE, SECURE, BUG-FREE OR UNINTERRUPTED.
LIMITATIONS OF LIABILITY.
Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE LABOR THAT WORKS IP OR THE PROVISION OF THE PLATFORM, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
Total Liability. IN NO EVENT WILL LABOR THAT WORKS’ TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE LABOR THAT WORKS IP OR THE PROVISION OF THE PLATFORM EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO LABOR THAT WORKS IN THE SIX (6) MONTH PERIOD PRECEDING THE INITIAL EVENT GIVING RISE TO A CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED OR NUMBER OF CLAIMS, AND WHETHER OR NOT LABOR THAT WORKS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 12 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN LABOR THAT WORKS AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
TERM AND TERMINATION.
Term. The term of this Agreement begins on the Effective Date and continues until terminated by either Party in accordance with the terms herein (the “Term”).
Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, (i) if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach, or (ii) for convenience and without cause, upon providing forty-five (45) days’ written notice to the other Party.
Survival. Sections 2(b), 2(e), 2(f), 3, 4, 6, 7, 8, 10, 11, 12, 13(c), 13(d), 14, and 17 will survive any termination or expiration of this Agreement.
Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will return or destroy, at Labor That Works’ sole option, all Labor That Works Confidential Information in its possession or control, including permanent removal of such Labor That Works Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Labor That Works’ request, certify in writing to Labor That Works that the Labor That Works Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
VERIFICATION. During the Term and for a period of three (3) years thereafter, at Labor That Works’ request, Customer will furnish Labor That Works with a certification signed by an executive officer of Customer verifying its compliance with this Agreement, including the restrictions set forth in Sections 7(d) and 8. Upon at least fifteen (15) days’ prior written notice, Labor That Works may audit Customer, including Customer’s use of the Platform, Customer’s facilities where Jobs are performed, and Customer’s staffing and personnel data and information, to ensure Customer’s compliance with the terms of this Agreement. Any such audit will be conducted during regular business hours at Customer’s and will not unreasonably interfere with Customer’s business activities. Customer will provide Labor That Works with access to the relevant Customer records and facilities.
TRADEMARKS. Customer hereby grants Labor That Works a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Platform; and (ii) Labor That Works’ marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Labor That Works and in case studies. All goodwill and improved reputation generated by Labor That Works’ use of the Customer Marks inures to the exclusive benefit of Customer. Labor That Works will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.
INSURANCE. Labor That Works will, during the Term, maintain Commercial General Liability insurance and Workers’ Compensation insurance, each with limits as set forth in the Order Form.
GENERAL.
Entire Agreement. This Agreement, including its exhibits and each applicable Order Form, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth below or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 17(b). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
If to Labor That Works:
Labor That Works, LLC
483 Broadway
Fl. 2
New York, NY 10013
Email: legal@traba.work
If to Customer: Contact information as set forth in the Order Form
Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York City, New York and the Parties irrevocably consent to the personal jurisdiction and venue therein.
Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2(b) and Section 8, would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
Subcontracting. Labor That Works may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Labor That Works remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. Stripe), Labor That Works will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Labor That Works.
Export Regulation. Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Platform or software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
U.S. Government End Users. The Platform, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.
No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. The Parties have agreed to contract electronically, and electronically signed versions of this Agreement (e.g., by “clickwrap”) will have the same weight and effect as originals.
Exhibit A
TIMEKEEPING AND TIMESHEETS POLICY
Workweek and Payroll Processing:
Labor That Works’ standard workweek begins at 12:00:00 AM EST on Monday and ends at 11:59:59 PM EST on Sunday.
Labor That Works’ payroll will be processed weekly, with payments distributed to Workers on Fridays. If any of Wednesday, Thursday or Friday falls on a bank holiday, payments will be distributed on the next business day.
Customer must adhere to all timekeeping and dispute deadlines (as set forth in the Agreement and this Exhibit A) to ensure timely payroll processing.
Timekeeping Systems:
Labor That Works operates under a licensed agreement with Traba, Inc. (“Traba”) and utilizes Traba’s technology (e.g., Traba software) (“Traba Technology”) for tracking hours worked and Worker location data. This data is considered the accurate source for payroll and dispute resolution in the absence of accurate and timely timesheets submitted by the Customer.
If Customer utilizing its own timekeeping system, Customer must submit its timesheets to Labor That Works no later than 3:00 PM EST on Monday following the previous workweek. If Monday is a federal holiday, submissions will be extended to 3:00 PM EST on Tuesday.
Failure to meet this deadline will result in Labor That Works defaulting to timekeeping records provided by Traba Technology, including app or kiosk data, location tracking, and feedback from supervisors.
Dispute Process:
Customer has until 3:00 PM EST on Tuesday following the previous workweek to dispute Traba-recorded times or provide evidence of discrepancies in its own timesheets (for purposes of this Exhibit A, a “Dispute”). If a Tuesday or the preceding Monday falls on a federal holiday, Disputes will be extended to 3:00 PM EST on Wednesday.
Disputes submitted after this deadline will not be considered, and Labor That Works will make a final determination regarding the Dispute, as outlined in Section 9, below.
Payment Timeline and Dispute Adjustments:
Labor That Works will issue invoices every Wednesday for the previous workweek unless a federal holiday on Monday, Tuesday, or Wednesday delays issuance to Thursday.
Payments are due per the terms of this Agreement, except as otherwise stated in an applicable Order Form.
Any Disputes or adjustments to timesheets after payroll processing shall not delay or alter the payment schedule for the original invoice. Adjustments, if applicable, must still be paid based on the terms of the original invoice date.
Customer is responsible for addressing any discrepancies or additional payments promptly.
Overtime Responsibilities:
If any Worker accrues overtime (under state, federal, or other applicable law) due to working at the Customer's direction, in response to the Customer's scheduling needs, or otherwise, the Customer is solely responsible for all overtime charges and any related expenses, including compliance with applicable labor laws.
Labor That Works will pay the overtime on behalf of the Customer and invoice the Customer for overtime charges as part of the regular payroll and invoicing process. Customer is required to pay these charges in full under the terms of this Agreement, except as otherwise stated in an applicable Order Form.
Fallback Clause:
In the absence of Customer-provided timesheets, and any applicable Disputes, Labor That Works will rely on Traba Technology data or other collected data (e.g., Worker calls, Customer calls, location tracking) as the final and binding accurate source for payroll purposes.
Prohibition of Off-the-Clock Work:
Labor That Works prohibits any Customer representative from instructing, encouraging, or knowingly permitting Workers to perform work "off the clock," misreport hours, or alter time records.
Any violations of this prohibition must be reported to Labor That Works immediately. Labor That Works reserves the right to take corrective action, including withholding payments or terminating this Agreement, in case of violation.
Location Data Usage:
Labor That Works reserves the right to use location data collected via Traba Technology to assist with timekeeping verification and Dispute resolution. Such data will be used in accordance with applicable privacy laws and may supplement app or kiosk records and Customer-submitted timesheets to confirm actual working hours.
Final Determination:
Labor That Works retains the authority, in its sole discretion, to make a final determination on timesheet Disputes based on evidence submitted by the Customer and Workers, and Traba Technology. This determination shall be binding.
